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SOSC 2652.pdf

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Social Science
SOSC 2652
Anna Pratt

SOSC 2652: Criminal Justice Systems Consensus and Conflict Perspectives Consensus – Legal definitions of crime and the administration of criminal justice reflect and reproduce universally held shared social values – Focus on criminal acts and actions (not reactions) – Clear distinction between criminals and non-criminals – Crimes are acts which are mala in se (wrong in themselves) Conflict Model – Less agreement on social values – Activities or behaviours are criminalized because of broader social, economic and political factors – the unequal distribution of power influences definitions of crime and the administration of criminal justice – focus on behavioural Sept. 19 Understanding Canadian Criminal Justice (I) Themes: 1. Due Process and Crime Control – Due process: – concern to limit, guide and structure official discretion and powers: the end does not justify the means – Emphasis on individual and procedural rights of the accused: 'better to acquit ten parties than to convict one innocent one' – Presumption of innocence – CCRF most significant in due process – Crime Control: – Emphasis on controlling crime, protection of the public and rights of victims – Emphasis on deterrence and incapacitation – Criminal justice authorities should have as much discretion and power needed: 'the end justifies the means' – Strong presumption of guilt and confidence that the innocent are screened out at the policing and prosecution stages 2. The Myth of “the System” – Conflicts between different stages – Conflicts in relation to a single stage/ component – Competing interests: offenders, victims, communities, administration of justice system – in reality we do not have a “well oiled machine”, variety of stages and practices that are often in conflict with each other Husbands Case – March 2010: Hamilton incidents leading to 9 weapons charges, 5 counts of breaching bail, obstructing police officer – November 2010: Toronto sexual assault incident leading to sexual assault charge. Granted bail. – April 2012: Hamilton court case: weapons charges dropped on 2 counts of breaching bail, 2 counts of obstructing a police officer, single count of possession of marijuana. Received 4 nd – June 2 2012:At the time of shooting, still out on bail for sexual assault charge. 3. Discretion – Discretion is “the freedom to choose between different options when confronted with the need to make a decision.” (Griffiths p.30) – Disparity: similar offenders who commit similar crimes receive sentences with differing severity – liberal ideals of rule of law doesn't like disparity – various forms of judicial self-regulation – Discrimination – related to discretion because discretion provides the space for systemic forms of discrimination – variety of limits on discretion, aim to enhance accountability 4. Accountability – “The state of being accountable; liability to be called on to render an account; the obligation to bear the consequences for failure to perform as expected.” – The requirement among public servants to provide an account for their decisions and actions take or not taken – Mechanisms of Accountability: – Charter Rights/ Remedies – ss. 7-14 legal rights protect those accused of crimes – laws may be struck down as unconstitutional – International Law – Standard Minimum Rules for the Treatment of Prisoners – Basic Principles for the Treatment of Prisoners – Body of Principles for the Protection of all Persons UnderAny Form of Detention or Imprisonment – Civil Law suits – Seeks compensation for alleged wrongs rather than punishment – Methods of accountability – Internal and External Review Mechanism – Municipal Police Services Boards – Ontario Civilian Police Commission on Police Services (OCPC) – SIU – Offender Complaint and Grievance System – Canadian Human Rights Commission – Public inquiries and public opinion – CCTV – Hand held video tech; counter-surveillance – Ashley Smith case – guards should be accountable for the death, watched process of death – typically guards stopped her before the attempted suicides could occur – no disciplinary action against guards 5. Inequality – The nature and effects of criminal justice are shaped by broader social relations of power – certain behaviours defined as criminal, punished – minorities effected and experience criminal justice in different ways – white people more likely to receive bail than others, – those granted bail more likely to be found not guilty – wealthy people able to purchase private industry monitoring to make case of receiving bail 6. Socio-Historical Context – Definitions of crime, modes of punishment and severity of punishment change over time and place – Influenced by many historically and culturally specific factors: moral beliefs, discrimination, political ideologies and agendas, grass-roots political struggles, economic interests, media, etc. – Factors influencing shifting canadian criminal justice responses to marijuana – comparing to other drugs – research – accessibility – medical use – legal challenges/decisions – International influences – law and order politics – social axes of disadvantage: race, class September 26 Understanding Criminal Justice (II) Politics, Popular Culture, and the Media Law and Order Politics Decreasing Crime Rates Increasing Public Fear Media The Social Production of Moral Indifference (Nils Christie) “Willingness to inflict pain... varies with our social distance from those who suffer...” Public Misperceptions, crime and the media Media coverage: – tends to focus on sensational, violent crimes – brief stories – focus on offence – few details about the case – social distance between public, the media and the party involved – when you provide the public with more info and ask more sophisticated questions, people are less likely to advocate more severe penalties – most of public is misinformed, but have strong views – i.e most believe crime rates are increasing, while that is not the cas – other (mis)perceptions: – prisons – parole – success rates and paroleees – costs of incarceration compared with community based supervision Sentencing: – Public tends to underestimate the severity of sentences imposed – public tends to overestimate the crime control effects of harsher sentencing – case attrition – contrary to public opinion, sentencing has little effect on rates of crime Conditional sentences – s 742 a convicted person who would otherwise be sentenced to incarceration for a period of less than two years can be sentenced to a conditional term of imprisonment to be served in the community instead of in custody – further restricted in Bill C-10 – Costly (est. $100 million/year) – Increase prison populations (overcrowding, double-bunking, keeping order) rd October 3 , 2013 Origins and Overview of Criminal Justice Criminal justice as DRAMA – “courtroom is the best entertainment in town” – think of trials as morality plays – think of behind the scene aspects Moral of the story: official version of law – Impartial – Neutral – Objective – System for resolving conflict – “what the legal world would have us believe about itself – is that it is an impartial, neutral, and objective system for resolving social conflict...” 1.Adversarial System: – 2 parties understood to be in contest, the law is a way that some kind of resolution is sought after – task of judge is neutral umpire – truth is decided by a disinterested party 2. Separation of Powers ( – separation between those how make the laws and those who enforce, so judiciary is neutral 3. Rule of law – Everyone is subject to the law – Everyone is equal before the law – “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread” 4. Legal Method – Stare Decisis: law of precedent (stand by previous decision) – limit disparity, ensure predictability, fairness, consistency – Decisions flow downwards – Lower courts must accept decisions of higher courts 5.Abstract, universal subject – All subjects are the same – law must present itself as a disinterested party Socio-Historic Context: Where do these Ideas of Justice Come From? – History of justice linked to history of capitalism – wrapped up with the history of capitalism – 1600s: new class of wealth producers – bourgeoisie – Wealth = money (not land) – Rights and freedoms of individual – Needed law that is predictable, rational, knowable – developed modern concept of individual rights – notions of free will, equality and choice – pitted these against the current system – Bourgeois revolutions (France & U.S) – Equality to their concern that all people would be subject to the law – Rule of Law, equality, individual rights BUT: mass inequality – Bloody Code (1688-1820) – increase in capital offences punishable by death -> many property crimes – self-interested system – Enclosure laws – How can a law system that is blatantly unfair be interpreted as legitimate Doug Hay (1975): 17 Century Assize Courts Majesty – Spectacle, awe, theatre, morality Justice – must be seen to be done – 'absurd formalism': procedural rules and legal formalism – occasional but much publicized trials of the wealthy Mercy – discretionary power reinforces authority Architecture of the Canadian CJS: Division of Powers Federal Government – Exclusive jurisdiction over crime (ConstitutionAct, 1867) – Federal Statutes enforced under CCC (e.g Controlled Drugs and SubstancesAct) – Responsible for federal penitentiaries Provincial and Territorial Governments – administer criminal justice, including police, courts, and provincial prisons – Enact and enforce provincial statutes (quasi-criminal) Municipalities – May also pass by-laws (e.g. Pet licensing, snow removal etc) Origins of criminal justice Overview of contemporary system and division of powers October 10, 2013 Models of Criminal Justice What makes criminal law distinct? Criminal Law vs. Civil Law Civil Law Criminal Law Objectives Compensation Punishment Focus Consequences CriminalAct (mens rea /actus reus) Rules of Evidence Must provide information No self-incrimination Causality/ Balance of probabilities Beyond reasonable doubt Standard of Proof Relevance of Law Retroactivity (if a law is No retroactivity passed after, you can take action) – crimes as inherently social, taken up by criminal justice system because of social view on the matter – give up involvement in justice to experts for them to guide on our behalf so it must reflect our beliefs, but public is distanced from courts – because they are proceeded by officials in the name of the public, the public is excluded (irony) – key concept of the funnel is the concept of loss – cases are lost as they move through the system – feeds into people's beliefs that the criminal justice system is not working Funnel: Sites of loss Visibility/ Reporting ↓ Police discretion ↓ Bail ↓ Prosecutorial discretion ↓ Trial ↓ Sentencing Explanatory Frameworks – Packer explains losses – find a balance between prosecution and protecting citizens from abuse of power – Function of the CJS is to protect society – CJS is marked by “loss” – Ref
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